Monday, May 2, 2016

Extorting an Extortion Co-Conspiritor: Ocasio v. United States

Today a divided Supreme Court rejected a challenge to a conspiracy "under color of official right" to commit a Hobbs Act extortion. In this Baltimore-based case, a group of policemen, including Officer Ocasio, had a deal with a local auto repair shop. When investigating a vehicle accident, they would recommend the car be taken to Majestic Auto Repair Shop. In return, Majestic paid the cops a cut. In some circles, this is known as a kickback.

In Ocasio v. United States, the challenge was to the extortion statute, which prohibited, inter alia, a conspiracy to "obtain money from another." Ocasio argued the "another" had to be someone outside the conspiracy. Justice Alito, writing for the majority, seemed to recast the issue (or "ultimately clarified") to focus on "the basic principles of conspiracy law," which he drew very broadly. The majority concluded, "It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense." Here, the conspirators shared a common criminal objective of obtaining money from another, even if "another" was a co-conspirator.

The varying opinions hinge on whether to hew to precedent, Evans v. United States, that essentially equated extortion with bribery. Justice Breyer concurred with Ocasio's majority, but noted that the issue the Court decided was not fully briefed and the question of whether Hobbs Act extortion is "roughly the same" as taking a bribe was "exceptionally difficult." In the end, Justice Breyer bowed to Evans. Justice Thomas, though, dissented, challenging Evans and denigrating the incongruous majority holding that "an extortionist can conspire to commit extortion with the person whom he is extorting."

Then Justice Sotomayor dissented, joined by the Chief Justice; she, too, nailed the "unnatural outcome" of the majority opinion: "If a group of conspirators sets out to extort 'another' person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is 'another' person."

As Scotusblog notes, this opinion may raise more questions than answers for extortion prosecutions, and that the underlying issues of federalism were not really addressed or resolved.